Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 197
P541/11	OPINION OF LORD TYRE in the cause E.C.A.P.) Petitioner; for Judicial Review of a decision by the Secretary of State for the Home Department dated 19 April 2011 ­­­­­­­­­­­­­­­­­________________

Petitioner: Caskie; Drummond Miller LLP

Respondent: Webster; Office of the Solicitor to the Advocate General

29 November 2011

Introduction

[1] The petitioner is a citizen of Zimbabwe. In this application she seeks review of a decision of the Secretary of State for the Home Department dated 19 April 2011 not to treat certain representations made by her as a fresh claim for asylum. The procedural history of the petitioner's claim for asylum is set out in the petition as follows.

[2] The petitioner arrived in the United Kingdom on 21 June 2008 and claimed asylum two days later. Her application was refused and her appeal against the refusal was dismissed. Reconsideration of that decision having been ordered by the court, the immigration judge was held on 6 July 2009 not to have erred in law. Leave to appeal against that decision was refused by the Inner House of the Court of Session on 25 November 2010 and the petitioner's appeal rights ended. On 28 January 2011, she lodged submissions which she sought to have treated as a fresh claim for asylum. The Secretary of State rejected those submissions and also decided that the representations did not amount to a fresh claim.

[3] On 4 April 2011, the petitioner lodged a further submission which she sought to have treated as a fresh claim. The Secretary of State's refusal to treat this submission as a fresh claim is the subject of the present application. The submission was based largely upon changes in country guidance applicable to Zimbabwe during the period since the petitioner's arrival in the UK. It is therefore necessary for me to set out the evolution of that guidance in some detail.

Country guidance: Zimbabwe

[4] From time to time the Upper Tribunal (Immigration and Asylum Chamber) issues decisions which are designated by the Tribunal as "country guidance" (CG) decisions. As the Court of Appeal noted in R (Iran) v Secretary of State for the Home Department [2005] Imm AR 535 (paragraph 21), the usefulness of country guidance decisions is such that the practice is embedded in what are now Directions 12.2 - 12.4 of the Practice Directions for the Immigration and Asylum Chambers of the First-Tier Tribunal and the Upper Tribunal:

"12.2 A reported determination of the Tribunal, the AIT or the IAT bearing the letters CG shall be treated as authoritative finding on the country guidance issue identified in the determination, based on the evidence before the members of Tribunal...that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later CG determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:-

                      

(a) relates to the country guidance issue in question; and

(b) depends upon the same or similar evidence.

12.3 A list of current CG cases will be maintained on the Tribunal's website. Any representative of a party to an appeal concerning a particular country will be expected to be conversant with the current "CG" determinations relating to that country.

12.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law."

The approach which is currently set out in these paragraphs was endorsed by the Court of Appeal in R (Iran) at paragraph 27. I understand it to be common ground that the same approach should be taken in Scotland.

[5] In recent years there have been a number of decisions of the AIT and, subsequently, the Upper Tribunal which have provided country guidance regarding Zimbabwe. These have reflected the evolving political situation in that country as it might affect failed asylum seekers returned by the United Kingdom. At the time when the petitioner's appeal to the Tribunal against refusal of asylum was heard in October 2008, the relevant country guidance was contained in HS (Returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094 and, so far as material, was in the following terms:

"1. Failed asylum seekers do not, as such, face a risk of being subjected, on return to Zimbabwe, to persecution or serious ill-treatment. That will be the case whether the return is voluntary or involuntary, escorted or not.

2. The findings in respect of risk categories in [certain previous CG cases] are adopted and reaffirmed...".

One of the identified risk categories was active membership of the Movement for Democratic Change (MDC).

[6] In November 2008, after the petitioner's appeal had been heard and decided, a revised country guidance determination was made in RN (Returnees) Zimbabwe CG
[2008] UKAIT 00083, as follows:

"Those at risk on return to Zimbabwe on account of imputed political opinion are no longer restricted to those who are perceived to be members or supporters of the MDC but include anyone who is unable to demonstrate support for or loyalty to the regime or ZANU-PF. To that extent the country guidance in HS is no longer to be followed. But a bare assertion that such is the case will not suffice, especially in the case of an appellant who has been found not credible in his account of experiences in Zimbabwe."

[7] The country guidance in RN has now in turn been largely replaced by fresh guidance contained in EM & Others (Returnees) Zimbabwe CG
[2011] UKUT 98 (IAC), which was added to the Tribunal's list on 14 March 2011. For the purposes of the present application, it is necessary to quote from this guidance at some length:

"(1) As a general matter, there is significantly less politically motivated violence in Zimbabwe, compared with the situation considered by the AIT in RN. In particular, the evidence does not show that, as a general matter, the return of a failed asylum seeker from the United Kingdom, having no significant MDC profile, would result in that person facing a real risk of having to demonstrate loyalty to the ZANU-PF.

(2) The position is, however, likely to be otherwise in the case of a person without ZANU-PF connections, returning from the United Kingdom after a significant absence to a rural area of Zimbabwe, other than Matabeleland North or Matabeleland South. Such a person may well find it difficult to avoid adverse attention, amounting to serious ill-treatment, from ZANU-PF authority figures and those they control. The adverse attention may well involve a requirement to demonstrate loyalty to ZANU-PF, with the prospect of serious harm in the event of failure. Persons who have shown themselves not to be favourably disposed to ZANU-PF are entitled to international protection, whether or not they could and would do whatever might be necessary to demonstrate such loyalty (RT (Zimbabwe) [2010] EWCA Civ 1285).

(3) The situation is not uniform across the relevant rural areas and there may be reasons why a particular individual, although at first sight appearing to fall within the category described in the preceding paragraph, in reality does not do so. For example, the evidence might disclose that, in the home village, ZANU-PF power structures or other means of coercion are weak or absent.

(4) ...

(5) A returnee to Harare will in general face no significant difficulties, if going to a low-density or medium-density area. Whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a "loyalty test"), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF.

(6) ...

(7) The issue of what is a person's home for the purposes of internal relocation is to be decided as a matter of fact and is not necessarily to be determined by reference to the place a person from Zimbabwe regards as his or her rural homeland. As a general matter, it is unlikely that a person with a well-founded fear of persecution in a major urban centre such as Harare will have a viable internal relocation alternative to a rural area in the Eastern provinces. Relocation to Matabeleland (including Bulawayo) may be negated by discrimination, where the returnee is Shona.

(8) Internal relocation from a rural area to Harare or (subject to what we have just said) Bulawayo is, in general, more realistic; but the socio-economic circumstances in which persons are reasonably likely to find themselves will need to be considered, in order to determine whether it would be unreasonable or unduly harsh to expect them to relocate.

(9) ...

(10) ...

(11) In certain cases, persons found to be seriously lacking in credibility may properly be found as a result to have failed to show a reasonable likelihood (a) that they would not, in fact, be regarded, on return, as aligned with ZANU-PF and/or (b) that they would be returning to a socio-economic milieu in which problems with ZANU-PF will arise. This important point was identified in RN, and remains valid."

The petitioner's applications for asylum

[8] In her original application for asylum and in her appeal to the AIT against refusal, the petitioner claimed to fear persecution if returned to Zimbabwe because of her membership of the MDC. She claimed to have been detained, beaten and raped by members of ZANU-PF. The immigration judge made adverse findings regarding the petitioner's credibility. In particular, he did not accept that she was a member of the MDC or that the incident she described had taken place. He concluded that she had not proved that she had a well founded fear of persecution in Zimbabwe.

[9] The representations submitted by the petitioner to the Secretary of State on 28 January 2011 were not before me but the submission appears to have consisted of documents which were claimed to support the petitioner's assertion that she was a member of the MDC. I understand that this submission was rejected by the Secretary of State by letter dated 16 February 2011 on the basis of the immigration judge's adverse findings on credibility. That rejection is not of itself the subject of challenge in these proceedings.

[10] The further submissions with which this application is concerned consisted of a UK Border Agency "Further Submissions" form completed by or on behalf of the petitioner. Under the heading "Submission based on a change in your Country of Claim which is relevant to you", the following information is supplied:

"What has changed?
The case of EM & Others (Returnees) Zimbabwe has been promulgated.

Ennet comes from Mutoko which is in Mashonaland East. This is a rural area. She has been absent from Zimbabwe for around 3 years, a significant absence.

How does this affect you personally?
In terms of heading (two) in the case of EM & Others, Ennet is at risk. She was born in Seke which is also in Mashonaland East. As previously advised, Ennet has been politically active in the UK.

Under the heading "Submission based on a change in your personal circumstances", the following is stated:

"What is the change in your circumstances and when did this occur?
Applicant has been politically active in the UK as previously advised.

Various political documents are enclosed.

Why does this mean you should remain in the UK?
This means she is at further risk as a non-supporter of ZANU-PF and activist against ZANU-PF."

I understand it to be accepted that the documents enclosed were the same as the ones submitted to the Secretary of State on 28 January 2011.

The legal framework for judicial review of a "fresh claim" decision

[11] Rule 353 of the Immigration Rules states:

"When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."

No appeal is available against a decision of the Secretary of State that further submissions do not amount to a fresh claim.

[12] It is common ground that the standard to be applied in assessing whether a claim has a "realistic prospect of success" is a modest one. In R (AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855, Laws LJ observed at paragraph 34:

"A case which has no realistic prospect of success...is a case with no more than a fanciful prospect of success. 'Realistic prospect of success' means only more than a fanciful such prospect." (Emphasis in original.)

[13] In D v Secretary of State for the Home Department 2011 SC 560, the Court emphasised (at paragraph 7) that the proper approach to be taken by a judge hearing an application for review of a decision of the Secretary of State on a "fresh claim" submission is as set out in the opinion of the Court in O v Secretary of State for the Home Department 2010 SLT 1087 at paragraph 23, as follows:

"As far as the role of the court is concerned, guidance is to be found in the judgment of Buxton LJ in WM (Democratic Republic of Congo) [2006] EWCA Civ 1495, who having discussed the judgment of the court in [R v Secretary of State for the Home Department ex p Onibiyo [1996] QB 768], continued:

'[10] ...Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.

[11] First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return:... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision.'"

(References added.)

[14] The Court in D v Secretary of State for the Home Department went on to refer (at paragraph 9) to a discussion by Carnwath LJ in R (YH (Iraq)) v Secretary of State for the Home Department [2010] 4 All ER 448 of the expression "anxious scrutiny", and observed:

"Translating that into practice in the present case means that the decision letter should demonstrate that no material factor that could conceivably be regarded as favourable to the reclaimer has been left out of account in the review of the evidence."

The Secretary of State's decision

[15] In the decision letter dated 19 April 2011, the Secretary of State began by noting that, with the exception of the "Further Submissions" form which I have quoted in paragraph 10 above, the documents submitted had been considered in the Home Office letter dated 16 February 2011 and that it was not therefore considered that they created a realistic prospect of success before another immigration judge. The Secretary of State then proceeded to address the question whether the new evidence (i.e. the material in the form, including in particular the reference to a change in country guidance) created a realistic prospect of success. Having referred at some length to the immigration judge's adverse findings regarding the petitioner's credibility, the Secretary of State cited a passage from RN regarding the risk of persecution facing a person unable to demonstrate loyalty to the ruling Zimbabwean regime. However, the Secretary of State also drew attention to the following observation by the Tribunal in RN:

"An appellant who has been found not to be a witness of truth in respect of the factual basis of his claim will not be assumed to be truthful about his inability to demonstrate loyalty to the regime simply because he asserts that. The burden remains on the appellant throughout to establish the facts upon which he seeks to rely."

In view of paragraph 11 of the country guidance in EM, quoted above, this observation in RM remains a valid part of the country guidance for Zimbabwe. The Secretary of State concluded on the basis of this guidance that in view of the fact that the petitioner had been found by the immigration judge not to be credible in the core elements of her claim, she had not established that she would be unable to demonstrate loyalty to the regime upon return to Zimbabwe if required to do so. The Secretary of State further noted (paragraph 29 of the letter) that the petitioner appeared to have had no difficulty leaving Zimbabwe and that she had stated that her father had paid an agent $US5,000 to facilitate her journey to the United Kingdom. The Secretary of State observed:

"It may be considered by an Immigration Judge, applying the rule of anxious scrutiny, that the circumstances of your client's journey from Zimbabwe to the UK could be seen to be an indication that your client was viewed as loyal to the regime so as to be able to avoid the consequences of the chaotic disarray in the economy that other Zimbabweans have had to deal with, so as to preserve the means to finance such a journey."

[16] The Secretary of State then, in what appears to be a separate strand of reasoning, pointed out that in the light of the revised country guidance in EM, the risk to an individual is not uniform throughout Zimbabwe, and that the situation in Bulawayo and Harare is such that the influence of ZANU-PF is significantly less than in rural areas. She noted (paragraph 34) that the petitioner gave her last known address in Zimbabwe as being in Harare. The Secretary of State's overall conclusion, in paragraph 37, is that:

"...it is not considered that, applying the rule of anxious scrutiny, [the petitioner's] submissions would create a realistic prospect of an Immigration Judge coming to a different decision in this case in respect of [her] claim under Articles 2 and 3 of the ECHR".

Argument for the petitioner

[17] On behalf of the petitioner it was contended that the Secretary of State had erred in law in her approach to the application. Firstly, when dealing with the submission made on 4 April 2011, the Secretary of State had erred in failing also to consider the material concerning MDC membership which had been submitted in February. It was her duty to consider the representations in their entirety on each occasion (R (Salvador) v Secretary of State for the Home Department [2011] EWHC 1850 (Admin)). Secondly, her decision that the petitioner would have no realistic prospect of success in a claim before the immigration judge was unreasonable and irrational. On the basis of the previous adverse credibility findings regarding her claim to membership of the MDC, the Secretary of State had wrongly concluded that her assertion that she was not positively associated with ZANU-PF would also be found not to be credible. It was not sufficient for the Secretary of State simply to assume that the immigration judge would reach this conclusion. She had failed to address an issue which tended to support the petitioner's credibility on risk of persecution, namely that the petitioner had stated during her original appeal, at a time when geographical location within Zimbabwe was not a matter of significance, that she came from Mashonaland East. She had failed to take account of the difficulties which a person who had been out of the country since 2008 might experience in demonstrating loyalty to ZANU-PF by, for example, being able to sing the latest campaign songs. She referred to the petitioner's last address having been in Harare without making clear whether and if so why it was assumed that the immigration judge would find that the petitioner would return to Harare rather than to Mashonaland East. In all of these respects the Secretary of State had failed to take account of material favourable to the petitioner and accordingly had failed to satisfy the requirement of anxious scrutiny.

Argument for the respondent

[18] On behalf of the Secretary of State it was submitted that she had been entitled to find that the petitioner's claim would have no realistic prospect of success before an immigration judge. As regards the first matter complained of, the material submitted in February 2011 purported to support the petitioners' claim to membership of the MDC. She had previously been found not to be credible in this claim and the Secretary of State was entitled to conclude that an immigration judge would take the same view in a fresh claim. It was not necessary for there to have been a prior adverse credibility finding with regard to the petitioner's non-loyalty to ZANU-PF: given the adverse credibility finding regarding MDC membership, the petitioner would not be assumed to be truthful in her assertion that she would be unable to demonstrate loyalty to ZANU-PF if she returned to Mashonaland East. Moreover, if she returned to Harare, where she had her last known address, the issue of demonstrating loyalty would not arise. In this context reference was made to EM in which it was observed that a person's home was a matter of fact, not necessarily determined by their place or birth or where they regarded as their rural homeland. The question for the court was whether the Secretary of State's conclusion that there was no realistic prospect of success before an immigration judge was perverse. That could not be said to be the case here.

Discussion
Failure to have regard to whole material

[19] I am not persuaded that the Secretary of State failed to have regard to the whole material before her at the time of the application with which this petition is concerned. As was pointed out in submissions on her behalf, it is stated expressly - and correctly - in paragraph 9 of the letter of 19 April 2011 that the question for her was whether the material accepted as new (i.e. the "Further Submissions" form making reference to amended country guidance) when taken together with the previously considered material created a realistic prospect of success. I am satisfied that on a reading of the letter as a whole the Secretary of State did take into account the material which had been submitted in February but considered, since it related to the petitioner's claim to MDC membership, that it would not be regarded as credible by an immigration judge in a fresh claim. In my opinion the Secretary of State was entitled to reach this view and to attach no weight to this material in assessing whether there was a realistic prospect of success.

Failure to have regard to all relevant matters
[20] The approach which the Secretary of State must adopt when considering a "fresh claim" application is, in my opinion, set out accurately in the decision letter at paragraph 9. It is also clear, in my view, from the last sentence of paragraph 37 of the letter, quoted above, that the Secretary of State has asked herself and answered the correct question. Accordingly, this court should interfere with the Secretary of State's decision only if it considers that she has failed to satisfy the requirement of anxious scrutiny as explained by the Court in D v Secretary of State for the Home Department. In the present case the Secretary of State has, in effect, determined that the petitioner would have no realistic prospect of success in persuading an immigration judge that, firstly, she would be unable to demonstrate loyalty to ZANU-PF on her return to Zimbabwe and, secondly, she would be returning to Mashonaland East rather than Harare (since demonstration of loyalty would not be required if she were returning to Harare). The Secretary of State's view with regard to the first of these matters is founded upon the references made to the petitioner's lack of credibility by the immigration judge who heard her appeal in 2009. I bear in mind that, according to the opinion of the Court in D, anxious scrutiny means that the decision letter should demonstrate that no material factor that could conceivably be regarded as favourable to the petitioner has been left out of account in the Secretary of State's review of the evidence. In my opinion this test has not been met in the present case. I reach that view for the following reasons. It does appear to me that the Secretary of State has failed to provide an adequate foundation for her conclusion that the previous findings on credibility in relation to MDC membership would preclude the petitioner from satisfying an immigration judge that she would be unable to demonstrate loyalty to ZANU-PF. I am not persuaded by the terms of the decision letter that the distinction between proving MDC membership on the one hand and establishing inability to demonstrate loyalty to ZANU-PF on the other has been properly taken into account. Nor, in my opinion, does the Secretary of State's conclusion in paragraph 29 that "it may be considered" (my emphasis) by an immigration judge that the availability of funding for the petitioner's travel to the UK was an indication of loyalty to the regime meet the test of anxious scrutiny if it is to be read as part of her reasoning as to why there would be no realistic prospect of success. I also accept the submission on behalf of the petitioner that certain material factors that could be regarded as favourable to her, namely the fact that she stated in 2009 that she was from Mashonaland East, and the fact that her ability to demonstrate loyalty to ZANU-PF may be compromised by her 3-year absence from Zimbabwe, do not appear to have been taken into account. It was suggested by counsel for the respondent that this last point is dealt with at page 10 of the decision letter where reference is made to the length of the petitioner's residence in the United Kingdom. This passage, however, appears in the letter in the context of the Secretary of State's duty under Rule 395C of the Immigration Rules to consider the appropriateness of the petitioner's removal from the United Kingdom. It does not, in my view, demonstrate that the Secretary of State has considered the petitioner's period of absence from Zimbabwe in the different context of inability to demonstrate loyalty to ZANU-PF.

[21] Nor, in my opinion, can it be said that the Secretary of State's view of prospects of success before an immigration judge is based upon evidence that the petitioner would return to Harare rather than to Mashonaland East, with the consequence that ability to demonstrate loyalty to ZANU-PF would be unnecessary. The decision letter goes no further than making a factual observation that the petitioner's last known address was in Harare and it cannot, therefore, in my opinion be said that it is on this basis that the requisite degree of anxious scrutiny has been given to risk of persecution of the petitioner on her return to Zimbabwe.

Disposal

[22] The decision of the Court in D makes clear that it is not the function of this court in Rule 353 cases to form its own view as to whether there would be a realistic prospect of success in an appeal to the immigration judge. Nothing in this Opinion should therefore be taken as the expression of a view on that matter. In the light of my conclusion that the Secretary of State has not satisfied the requirement of anxious scrutiny, I simply grant decree reducing the decision contained in the letter of 19 April 2011 and remit the petitioner's application to the Secretary of State for re-determination. Questions of expenses are reserved.